Regina v Ryman Farag

[2007] NSWDC 366

CITATION:	Regina v Ryman Farag [2007] NSWDC 366
JUDGMENT DATE:	5 December 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Overall sentence of imprisonment for 1 year and 11 months with a non-parole period of 1 year.
CATCHWORDS:	Criminal law - Sentence - Supply of prohibited drug x 5 - Ongoing supply of a prohibited drug (Heroin) - Undercover police operation - Offender on bail at time of offences - Offender a heroin addict - Supportive family - Rehabilitation
LEGISLATION CITED:	ss 25, 25A, 39P Drug Misuse and Trafficking Act 1985
PARTIES:	Regina Ryman Farag
FILE NUMBER(S):	07/21/3063
COUNSEL:	Mr Ainsworth for the offender
SOLICITORS:	Mr Murray for th NSW DPP

SENTENCE

1. I am sentencing Ryman Farag for six crimes. In addition, when I sentence him for one of those crimes he has asked me to take into account three other crimes which he has committed.

2. The six crimes are all drug offences. Five of them are the offence of supplying a prohibited drug. In each case the drug was heroin. On each occasion the offence was committed against s 25(1) of the Drug Misuse and Trafficking Act 1985 . Each of those offences carries a maximum of fifteen years imprisonment.

3. The sixth offence was an offence against s 25A of the Drug Misuse and Trafficking Act . It carries a maximum of twenty years imprisonment.

4. When I sentence him for that sixth offence, which is called ongoing supply of a prohibited drug, the drug in that case also being heroin, I take into account in that sentence the three additional crimes which he has asked me to consider. Each of those is also a drug offence. Two of them are for drug supply, one of them a supply of cannabis the other a supply of heroin. Both of those are against s 25(1) of the Drug Misuse and Trafficking Act. The third is for possessing a prohibited drug, once again that drug was heroin, and the offence is committed against s 10 of the Drug Misuse and Trafficking Act .

HIS HONOUR: I am just going to suspend my remarks on sentence now to explain to Mr Farag, which I normally do before sentencing someone. Mr Farag, I’m going to sentence you shortly. What I do first, as Mr Ainsworth has probably explained, is give my remarks on sentence. They are my reasons, and you will hear me refer to documents and things which you have already heard referred to in court and you will also hear me refer to your brother’s evidence. And the reason that judges do that is so that everybody including you and your family and any members of the public know the reasons why I am sentencing you. That’s why I go through this process, do you understand, before I actually deliver the sentence?


OFFENDER: Yes I do, your Honour.

5. Each of the six principal offences arose out of an undercover operation. Police had focussed their attention on the activities of persons involved in the supply of heroin in Campbelltown and Casula. They focused on Mr Farag as one of their suspects. Between 21 April 2006 and 15 June 2006 undercover police officers transacted the purchase of heroin from him on eight occasions. Five of those occasions formed the basis of the five charges of supplying heroin. Three of those occasions were grouped together and formed the basis of the charge of ongoing supply of heroin against s 25A. The transactions occurred in public car parks, mostly at Hungry Jack’s restaurant in Campbelltown and on two occasions in the car park of McDonalds restaurant in Casula.

6. In respect of the five supply offences, the respective dates, amounts and values of heroin supplied were these: 21 April 2006 0.06 grams $100, 26 April 2006 0.08 grams $100, 27 April 2006 0.18 grams $200, 16 May 2006 0.76 grams $700, 24 May 2006 0.45 grams $700.

7. The dates, amounts and cost or purchase price of the heroin supplied on the three occasions forming the basis of the ongoing supply charge were these: the dates ranged between 1 June and 16 June 2006 and the amounts were 1.93 grams $2400, 3.28 grams $5000 and 6.93 grams $9000. This provides the basic account of the crimes for which I am sentencing Mr Farag.

8. A number of things need to be said first about how serious these offences were. So far as supply of heroin is concerned I regard the first three supply offences involving prices of $100 and $200 as relatively small transactions. So far as the last two of the supply transactions for $700 are concerned I regard them as a little more serious than the first three. So far as the ongoing supply of a prohibited drug is concerned I regard them as fairly serious offences. They are nowhere the top of the range given that heroin can be sold for very significant sums of money, nevertheless they are well above transactions involving hundreds of dollars.

9. Still looking at the question of how serious these offences were I also take into account that they were more serious because they were committed by Mr Farag when he was on bail. He had been arrested for the offences which are on the Form 1. All of those offences were committed in 2005. He had been bailed either by the police or by a court after being arrested for those offences. In other words the justice system had agreed to allow him to go back in to the community at liberty. He abused that liberty afforded to him by engaging in the sale of heroin which amounts to the offences that I am sentencing him for now.

10. The next thing which needs to be said about the seriousness of these offences is that they were committed in disregard for the public safety. I do make some small allowance for the fact that they were all transactions involving undercover police so that the drugs themselves never went into the community. Nevertheless Mr Farag was prepared to make available to a relative stranger small to reasonably significant amounts of a very dangerous drug without any evidence of knowing whether the drug was to be used by that person, itself a dangerous activity, or so far as the large amounts were concerned more likely provided further within the community. He had a complete disregard for the impact which his activities might have had on other persons within the community.

11. The final thing which needs to be said about the objective seriousness of these offences is that they were committed by a drug addict. The authorities have made it clear that that of itself does not amount to a mitigating factor. The fact that crimes like this are committed by drug addicts, in other words, does not like other factors such as a plea of guilty or assistance to authorities, result automatically in a discount in the sentence. What it does mean, however, and in this regard I accept the submission of Mr Ainsworth who appears for Mr Farag, is that it reflects upon the objective seriousness of the activity which comprises the crimes. As Mr Ainsworth said, his client was heavily addicted himself to heroin. He was driven by his addiction to make the sales. That does not excuse his activity but it does explain it and it should be regarded not as seriously as transactions by a non-addicted person who undertakes the exercise in a calm manner as a business enterprise. The fact that he was addicted reflects itself in the impulsivity of the offending behaviour as well as his own judgment in being able to assess the seriousness of his own activity. They are the objective factors which form the basis of my approach to this sentence.

12. I turn now to factors which are personal to Mr Farag. The first source of that information is a pre-sentence report dated 13 June 2007. It records that he had been using illegal drugs since the age of fourteen and by the age of seventeen he had started to use heroin and was addicted to a $600 a day habit by the time he turned eighteen. It continued for some five years. By the age of twenty-two he resorted to engaging in criminal activity to support his habit. Mr Farag completed school to year ten but after entering the workforce decided to complete his higher school certificate, which he did successfully. He has enrolled in a TAFE course in information processing and is eighty per cent of the way through that course.

13. Very significantly the pre-sentence report indicates that he reported abstinence from illegal substance use since his arrest. He was arrested on 15 June 2006. He has undertaken urinalysis with his general practitioner on fifteen occasions between 23 November 06 and 25 May 07 with no illegal drugs detected. He has also engaged in some drug counselling for some months.

14. The other source of information about his personal circumstances came from his brother, Mr Tamer Farag, who was called by Mr Ainsworth. Mr Farag is a thirty-two year old accountant who pointed out that his family became very concerned about his brother’s drug usage. Many times his family found that they had to look for their brother, Ryman Farag, because he lost contact as a result of his becoming involved in his drug use. On one occasion he disappeared for some six months and it was not until they contacted the Police and Corrective Services that they tracked him down in gaol. They then undertook to back him 100 per cent in his rehabilitation.

15. The offender was bailed on 16 November 2006 on strict conditions to go out only in the company of his brother or his parents. He remained on bail for almost a year until 3 October 2007. His brother gave evidence about the offender’s rehabilitation and urinalysis which was paid for by the family. His brother was convinced that the offender was now no longer using drugs. He also saw a significant change in his brother’s attitude and behaviour. He has remained away from the friends who were involved in the drug culture. His relationship with their father has much improved. Both he and his sister, also a qualified accountant, are actively considering offering him employment with their respective companies. They are each in positions where they may well be able to bring that about. On his release they made it clear that the offender will live either with Mr Tamer Farag or with their parents. He confirmed his brother’s interest in possibly undergoing an accountancy course after he finished his course on information processing.

16. Another factor which is relevant in these proceedings is exhibit C. I have read exhibit C. It has been the subject of submissions and I will give it a specific quantified rate by way of discount when I come to specifying the sentences which I have in mind for Mr Farag. I accept Mr Ainsworth’s submissions about the effect of what is contained in exhibit C being real and the consequences which that behaviour was attended by when Mr Farag was engaged in it. I will also give some consideration to the future consequences of that behaviour.

17. I have taken into account a reference by Mr Ryan Porter dated 28 August 2007. He has known the offender for most of his life. Since Mr Farag’s release from custody Mr Porter noticed a change both physically and mentally, he appeared to be much healthier both physically and mentally. I have also read the encouraging report from Lorraine Pitts at the South West Sydney Area Health Service.

18. This evidence points to a number of factors favourable to Mr Farag which I now turn to to list before sentencing him. One factor, which I have not mentioned, is that Mr Farag pleaded guilty at his committal on 21 March 2007 which Mr Murray, who appears for the prosecution in this case, agreed was the earliest opportunity. The second personal factor is that Mr Farag is a relatively young man who was born on 19 February 1983 so that he is still aged twenty-four. The third factor is that he has clearly I find undertaken very serious efforts at his own rehabilitation. I accept the findings about his urinalysis and I accept his brother’s evidence. His prospects of future continuing rehabilitation I regard as good. It is difficult to predict the outcome of rehabilitation for anyone who is addicted, or has been, to this particular drug, but Mr Farag’s past efforts point to good prospects for his eventual complete rehabilitation.

19. The next factor that I refer to, which is also relevant to his future, is his family support. Mr Farag is backed by a very strong family who have supported him emotionally and financially and so far as accommodation is concerned as well. They are clearly behind him. This also includes the active consideration of employment. This must improve his prospects of rehabilitation. Another factor which contributes to his rehabilitation is Mr Farag’s active engagement in his own advancement by way of education. I have already mentioned exhibit C which I take into account. In regard to exhibit C I also accept the submission made by Mr Ainsworth concerning the frankness of the information provided by Mr Farag and the detail about his own activities.

20. I turn now to consider the sentence which I will impose. I have taken into account the submissions of both Mr Ainsworth and Mr Murray and the statistics produced by the Judicial Commission of New South Wales. It is convenient to turn first to the appropriate sentence for the ongoing supply of heroin. It will become apparent, in my reasoning that I am about to explain, the discounts and factors which I take into account at arriving at my final figures. As I said I regard the offence of ongoing supply against s 25A in this case as reasonably significant. It is nowhere near the top of the range but it involves sums accumulating to $16,000 over a period of a few weeks and significantly was committed by Mr Farag whilst he was on bail. I would regard a starting figure for that offence as being seven years imprisonment, however there are two important discounting factors to take into account at this stage.

21. As I said Mr Farag has pleaded guilty early, indeed at the earliest opportunity. There is also the material in exhibit C. These are two factors to which the criminal law attaches much significance. Combined, and genuine as they are in this case, I propose to allow a discount of fifty per cent. I therefore regard the appropriate sentence after the discount as some three-and-a-half years. At this stage I take into account two other factors. The first is Mr Farag’s youth and the second is that in serving his custody there is a distinct possibility that the educational facilities available to him may be limited from time to time. I therefore propose to reduce the sentence a little further to reach a final sentence for the s 25A offence of two-and-a-half years.

22. I now turn to the question of the non-parole period. Mr Ainsworth submitted that there should be an adjustment from the normal ratio of three-quarters to a quarter, that is three-quarters of any sentence is served in custody without parole and one-quarter on parole. He submitted that there should be an adjustment so that less time is served in custody. Mr Murray did not oppose that submission. I regard the submission as soundly based. In this regard Mr Farag’s demonstrated rehabilitation and his prospects are important. I regard it as important to allow him a longer than usual parole period in order for him to increase his prospects of rehabilitation. I therefore propose to fix a non-parole period of fifteen months notionally and an additional period of fifteen months. I say the non-parole period should be notionally fifteen months because Mr Farag has already served some six-and-and-a-half months in prison. He has been in continuous custody on these offences since 15 November 2007. What I propose to do is to round that six-and-a-half months up to seven months and to reduce the non-parole period of fifteen months to eight months. So in respect of the offence of ongoing supply of a prohibited drug the effective overall sentence will be one year and eleven months, that is twenty-three months. It will commence on 15 November 2007 when Mr Farag recommenced his custody and expire on 14 October 2009. The non-parole period will be eight months from 15 November 2007 expiring on 14 July 2008 and the balance of the term will be fifteen months from 15 July 2008 to 14 October 2009.

23. I turn now to the five other offences. Three of them, as I said, I regard as less serious than the other two. The other two are a little more serious than those three, that is the two transactions involving $700 are a little more serious than the three transactions involving one or two hundred dollars. So far as the two transactions involving $700 are concerned, I would commence at a figure of three-and-a-half years for each of those offences. Once again I give Mr Farag the benefit of his plea and exhibit C and I reduce the sentence for each of those two offences from three-and-a-half years which is forty-two months to twenty-one months. Because of his youth and the circumstances of his custody I will reduce those to fifteen months.

24. So far as the three offences involving amounts of $100 and $200 are concerned I regard an appropriate starting figure as three years. After making an allowance for his plea and for exhibit C I reduce those to eighteen months which are further reduced to twelve months to take into account his youth and the circumstances of his custody. I propose to fix all of the sentences for the five drug supply offences, that is the first five offences, so that they run concurrently with each other. They will all be served together at the same time. However I propose to partially accumulate those sentences on top of the sentence for the ongoing supply. I can see the force of Mr Ainsworth’s submission that all of this activity amounted to one episode of criminal behaviour. On the other hand there are no fewer than six offences comprising eight separate occasions upon which Mr Farag elected to distribute this drug into the community. The activity involved in the ongoing supply was itself of a significant degree of criminality. I would regard it as inappropriate to sentence him in a way where he served no additional time for the five previous straight drug supplies.

25. I propose to accumulate them so that effectively he will serve an additional four months. In doing this I will be adjusting the fifteen month sentences for the $700 transactions to a sentence of fourteen months and fourteen days. So in respect of the two drug supply offences involving amounts of $700 for each offence I sentence Mr Farag to fourteen months and fourteen days, that is one year, two months and fourteen days. Those sentences are to run concurrently and to commence on 1 April 2008 and to expire on 14 June 2009. I fix a non-parole period of seven months and fourteen days in respect of each offence. That will commence on 1 April 2008 and expire on 14 November 2008. The balance of the term will be seven months from 15 November 2008 to 14 June 2009.

26. In respect of the three offences involving amounts of $100 to $200. I propose to in each case fix sentences of twelve months without a non-parole period to be served concurrently and to date from 15 November 2007 to 14 November 2008. I have not specified non-parole periods because those sentences of twelve months each are completely concurrent with the non-parole period in respect of the other two slightly more serious supply offences.

27. I make an order directing that Mr Farag be released on parole on 14 November 2008. His parole is to be subject to the following conditions: that he accept the supervision of the New South Wales Probation and Parole Service and obey any reasonable directions which it gives relating to his drug rehabilitation including urinalysis; that he reside for the period of his parole either with his parents or with his brother Tamer Farag; thirdly, that he will be of good behaviour during his parole and appear before the Court if called upon to do so; fourthly, that he notify the Registrar of the Penrith District Court of any change in his residential address.

HIS HONOUR: Now Mr Ainsworth and Mr Murray in a moment I will, as I have to make sure that Mr Farag understands the sentence, and I will run through it again with him, but before I do that are there any orders which I need to make any additional conditions which either of you suggest?

AINSWORTH: No thank you, your Honour.

MURRAY: No your Honour. There is just the order in relation to the destruction of drugs.

HIS HONOUR: Good.

28. Pursuant to s 39P of the Drug Misuse and Trafficking Act 1985 I order that the drugs involved in this case be destroyed.

HIS HONOUR: Now are the numbers right in the adding up?

AINSWORTH: Yes your Honour they are.

MURRAY: Yes.

AINSWORTH: And I can plainly see what your Honour has done so I can explain it to him.

HIS HONOUR: I am obliged by statute to.

AINSWORTH: I’m not suggesting your Honour don’t, but rest assured I understand it and I can explain it to his family.

HIS HONOUR: Thanks. Mr Farag, stand up. You are going to be in gaol for just under another year, do you understand that?

OFFENDER: Yeah.

HIS HONOUR: I have ordered that you be released on parole, and that’s my order not the parole services order, on 14 November 2008. I have given you effectively three sentences. The sentence for the most serious offence which is the ongoing supply, the three supplies of up to $16,000, do you understand that? That’s one sentence. And I have given you a sentence of one year and eleven months, that’s 23 months. Normally I would give you 30 months but because you have done a bit less than seven months in custody I am reducing it to 23 months. Eight months of that you’ve got to be in gaol for, do you understand? So that means that you’re in gaol on that one and all of the sentences date from when you went back into custody last month, 15 November, so that sentence you’ve got to be in gaol from 15 November 2007 to 14 July 2008 and then as it happened you are still in gaol because the other two, three, five straight supplies I have given you 14 and a months for the two involving $700 and I have given you 12 months for the three involving one or two hundred dollars and I have commenced those so that you are serving an additional four months in gaol for those.

So the seven-and-a-half month sentence or rather 14-and-a-month sentence commences on 1 April next year and your non-parole period of seven months and 14 days will finish on 14 November 2008 and that’s when you will be released. Then you are on parole after that until 14 October 2009. So you have got just under a year on parole. And the two less serious offences I have given you one year which will expire at the end of your non-parole period. Whilst you’re on parole I have suggested you be supervised by Probation and Parole, you have been with them before, and I am directing that you accept their recommendations for drug rehabilitation, you are clearly on the right track, you are clearly well-supported as I have said in my judgment and I hope that you continue with that progress that you have made. And you’ve got to notify the Court of any change of address. I have said that you’ve got to stay with your parents or your brother because that seems to be the successful formula so far.

I have heard submissions by Mr Ainsworth, I’ve had to balance the seriousness of what you have been doing which are very serious crimes with clearly your quite exceptional efforts of rehabilitation, so I’ve had to weigh that up. And you have heard me mention the other factors as well which I have taken into account. Your serious crimes started with quite high figures but because of various factors which Mr Ainsworth will explain to you and which you have heard me refer to, your sentences have been reduced quite considerably. Do you understand that?

OFFENDER: Yeah.

HIS HONOUR: Okay, thank you both Mr Ainsworth and Mr Murray for your assistance, I have been grateful.